J&K Did Not Retain Sovereignty, Article 370 Was Temporary: Top SC Quotes

The Supreme Court on Monday said Article 370, which bestowed special status on the erstwhile state of Jammu and Kashmir, was a temporary provision and the President had the power to revoke it. Holding the Centre’s move to abrogate Article 370 constitutionally valid, a five-judge Constitution bench headed by Chief Justice DY Chandrachud said Jammu and Kashmir did not retain its sovereignty after it joined the Union of India.

However, the apex court directed that the Union Territory of Jammu and Kashmir be given statehood at the earliest and ordered the Election commission to conduct election by September 30, 2024.

In a concurring but separate judgment, Justice Sanjay Kishan Kaul suggested the formation of a ‘Truth and Reconciliation’ committee to investigate human rights violations both by state and non-state actors since 1980s and recommend steps for reconciliation.

READ | Article 370 Recap: Accession Condition To Abrogation — J&K Special Status History In 10 Points

The BJP-led government had stripped Jammu and Kashmir of special status under Article 370 and repealed Article 35A on August 5, 2019. Under Article 370, J&K had a separate Constitution, a state flag, and administrative autonomy. Article 35A granted special privileges to the people of Kashmir, preventing outsiders from seeking permanent settlement or buying property in the state.

Article 370 Verdict: Top Quotes By Supreme Court

‘Use Of Presidential Power Not Mala Fide’

CJI Chandrachud said the exercise of the power of the President under Article 370(3) to issue the August 2019 presidential order for scrapping Article 370 was not mala fide.

“We hold that President seeking concurrence of the Union and not the state is not invalid. Thus all provisions of the Constitution can be applied to J&K. Consultation between state would be needed only when amendments are needed in the state Constitution to ensure that Constitution of the state is not inconsistent with that of Jammu and Kashmir. Mala fide can only be there when there is an intention to deceive,” the CJI said.

‘J&K Did Not Retain Internal Sovereignty’

The Supreme Court said the proclamation of Maharaja Hari Singh stated that the Constitution of India would supersede. The CJI said that J&K became an integral part of India was evident from Article 1 of the Constitution.

“Jammu and Kashmir does not have any internal sovereignty after accession to Union of India. Neither constitutional text states that Jammu and Kashmir had any internal sovereignty,” the apex court said.

‘Article 370 Is Temporary Provision’

The top court held that Article 370 was introduced to serve transitional purpose to serve an interim process and was a temporary provision. “Article 370 is a temporary provision. It was for a temporary purpose because of war conditions in the state. Textual reading also shows it is a temporary provision,” the CJI said.

However, the court said the power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of Constituent Assembly. 

“Article 370(3) was introduced for constitutional integration and not for constitutional disintegration. Holding that 370(3) cannot be used after Constituent Assembly was dissolved cannot be accepted,” the Supreme Court said.

“Recommendation of the Constituent Assembly was not binding on the President. Constituent Assembly was never intended to be permanent body and it was to operate in a period of transition. When the Constituent Assembly ceased to exist, the special condition for which Article 370 was introduced ceased to exist,” the court further said.

SC Upholds Reorgansiation Of Ladakh As Union Territory

The Supreme Court did not rule on the validity of the Jammu and Kashmir Reorganisation Act, which had bifurcated the state into two UTs — J&K and Ladakh. However, the court upheld the validity of the Centre’s decision to carve Union Territory of Ladakh out of Jammu and Kashmir.

“The reorganisation of Ladakh as Union Territory is upheld as Article 3 allows a portion of state to be made as UT,” the court said.

‘J&K Statehood To Be Restored At Earliest’

Noting the submissions of the Solicitor General that the status of UT was temporary for J&K, the SC said the restoration of statehood should take place as soon as possible. The court also directed the Election Commission of India to conduct elections to the J&K Assembly by September 30.

“We direct that steps shall be taken so that elections are held in Legislative Assembly of J&K by September 2024 and statehood shall be restored as soon as possible,” the court ordered.

Truth And Reconciliation Committee To Probe Rights Violations

In a separate but concurring judgment, Justice SK Kaul said the main purpose of Article 370 was to slowly bring J&K at par with other states. Saying that the first step towards healing the wounds was the acknowledgement of the acts of violations done by state and its actors, Justice Kaul recommended the setting up of a “Truth and Reconciliation” committee. The panel will be tasked with probing violations of human rights both by state and non-state actors since 1980s and suggest steps for reconciliation.

“The commission must be set up before memory escapes. The exercise must be time-bound…It should be based on a dialogue and not become a criminal court,” he said.